City of Lasalle v. Kostka

unsafe and dangerous condition of the ditch as was due to the fact that the sides thereof were permitted to remain in a loose and water-soaked condition. We are unable to agree with counsel for appellant in this contention. The declaration alleges that the appellant disregarded its duty by failing to keep "the earth, sand, and other substances" of the walls or sides of the sewer "firmly in place," by "wrongfully, carelessly, and negligently suffering the excavation for the sewer to remain in an unsafe condition," by suffering "the earth, sand, and other substances forming the sides or walls of said excavation to remain in a loose, water-soaked, and dangerous condition." The conjunction "and" is a co-ordinate conjunction. It is not explanatory, but signifies and expresses the relation of addition. As used in the declaration as above quoted, it means that the earth, sand, and other substances of the walls or sides of the ditch were in a condition beyond, or in addition to, that of "a loose and water-soaked" condition; and that they were also in a dangerous condition. Under the allegation that the sides of the ditch were in a dangerous condition it was proper to show by testimony that they were in such dangerous condition by reason of the absence of proper braces. We are of the opinion that no error was committed by the court below in refusing to give said instruction numbered 28.

It is assigned as error that the trial court refused to give appellant's instruction numbered 31, which said to the jury: "If you believe from the evidence that the plaintiff himself dug the ditch at the particular spot where he was injured, then, and in such case, the law is that he had such notice of the condition of the said ditch as would bar him from recovering." etc. This instruction tells the jury that, as a matter of law, the fact that the plaintiff was himself engaged in digging the ditch was conclusive upon the question as to his knowledge of its defective condition. The fact that he was so engaged may have been a strong circumstance from which the jury would be allowed to infer that he had such knowledge, but it was a question for them to determine from that fact and from all the other evidence in the case, whether or not he did have such knowledge. While instructions similar to instruction numbered 31 have been indorsed by the courts in some of the states, such instructions have not received the approval of this court. For example, in Pennsylvania Co. v. Frana, 112 Ill. 398. it was held that the trial court properly refused an instruction which told the jury that, if the plaintiff there could have discovered the approach of the defendant's train and avoided the injury by stopping his horse before driving upon the track and looking and listening for the approach of the train, he could not recover; and it was there said that, although it was the duty of a person about to cross a railroad track to approach cautiously, and endeavor to ascertain if there was present danger in crossing, yet it was a question of

City of Lasalle v. Kostka

fact for the jury to determine from the evidence whether the person injured had exercised proper care and caution in crossing the track, and not a question of law. The case of Pennsylvania Co. v. Frana has been approved in the following cases: Myers v. Railway Co., 113 Ill. 386, 1 N. E. 899; Railroad Co. v. Haskins, 115 Ill. 300, 2 N. E. 654; Railroad Co. v. Adler, 129 Ill. 335, 21 N. E. 846; Railroad Co. v. Hutchinson, 120 Ill. 587, 11 N. E. 855; Railroad Co. v. Lane, 130 Ill. 116, 22 N. E. 513; Pennsylvania Co. v. Backes, 133 Ill. 255, 24 N. E. 563; Railway Co. v. Hansen, 166 Ill. 623, 46 N. E. 1071; Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713.

Appellant asked the court to give instruction numbered 12, which told the jury that the credibility of a witness is a question exclusively for them, and that the law is that, where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of the evidence as evenly balanced; that they "have the right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and all the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit, and to give the credit accordingly. The court modified this instruction by striking out the words, "from the appearance of the witnesses on the stand,” and gave it as thus modified. Counsel for the appellant contends that the court erred in thus modifying the instruction, and we agree with them. In Stampofski v. Steffens, 79 Ill. 303, we said that it was for the jury to determine the credibility of the witnesses "from the appearan e of the two witnesses upon the stand, their manner of testifying," etc. The court might well have given the instruction with the omitted words in it. But the modification of the instruction, although technically erroneous, could have done the appellant no injury in this case because the elements presented to the jury by the instruction as means of determining the credibility of the witnesses were involved in their appearance upon the stand. The jury must necessarily have observed the appearance of the witnesses on the stand in order to determine their manner of testifying, their apparent candor and frankness, their apparent intelligence or lack of intelligence. Therefore the clause omitted from the instruction was substantially embraced in, and was necessarily a part of, the portions of the instruction which were given.

It is further charged by the appellant that the court below committed error in refusing to give instruction numbered 36 asked by the appellant. That instruction told the jury that if they believed from the evidence that the injuries inflicted upon the appellee were caused by the negligence of his coemployees who were engaged in attempting to put a brace in said ditch, then, and in such case, the defendant was not liable

City of Lasalle v. Kostka

for such injuries, provided the jury further believed from the evidence that such persons who were engaged in putting in said braces were fellow servants of the plaintiff. This instruction was properly refused, for the reason that there was no evidence upon which to base it. The sewer or ditch was dug under the direction and supervision of the city street supervisor, named Burkhart, assisted by the assistant city engineer, named McGovern, who acted as a foreman under Burkhart. The proof tends to show that the braces to prevent the sides of the ditch, which had been loosened by a recent rain, from falling in, were put in under the direct personal supervision and express orders of the foreman for appellant. They were put in just as this foreman directed, and the putting of them in, being his act, was the act of the appellant itself. The foreman cannot be held to have been a fellow servant of the appellee. If there was any negligence in the putting in of the braces, it was the negligence of the foreman, and hence the negligence of appellant. The law of fellow servant has no application to such a state of facts. Where a master confers authority upon one of his employees to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow servant; and all commands given by him within. the scope of his authority are in law the commands of the master. Railroad Co. v. May. 108 Ill. 288; Coal Co. v. Holmquist, 152 Ill. 581, 38 N. E. 946; Railroad Co. v. Godfrey, 155 Ill. 78, 39 N. E. 590; Fraser & Chalmers v. Schroeder, 163 Ill. 459, 45 N. E. 288. The foreman of the appellant was chargeable with a specific duty, to wit, that of exercising reasonable care to see that the place where he sent appellee to work was reasonably safe, and appellee had the right to rely upon the performance of such duty by the foreman before the latter gave the order for appellee to work where he did work. Appellee was not required to make a critical and careful examination of his surroundings at the place where he was sent to work by the foreman. The foreman represented appellant, and was bound to take reasonable precaution for the safety of appellant's employees, and in ordering appellee to work where he did work was charged with the duty of seeing that the place was reasonably safe. Ross v. Shanley, 185 Ill. 390, 56 N. E. 1105. We discover no error in this record which would justify us in reversing this judgment. Accordingly, the judgment of the appellate court is affirmed. Judgment affirmed.

CITY OF GRAND RAPIDS v. VAN ROSSUM et al.

(Supreme Court of Michigan, April 16, 1901.)

[85 N. W. Rep. 867.]

Sewer Excavation*-Contractual Duty to Save Harmless Cannot Be Gotten Rid of by Assignment.+-Defendant, a plumber, gave bond to the city of Grand Rapids to save it harmless from excavations made by him in the streets when making connections with gas, water mains, etc., and to fill and properly cover the excavations after his work was completed. He dug a trench across a street, and, instead of covering it when his work was completed, he made an arrangement with one Owens, who was digging a sewer lengthwise of the street, by which the latter agreed to take care of the excavation in the line of the sewer, and properly protect it. Defendant did not notify the city of this arrangement, or obtain permission to turn the excavation over to Owens. Owens failed to properly guard the opening. A person fell in, was injured, and recoverd damages against the city. In a suit upon defendant's bond, held that he was primarily liable, and could not defend by showing his agreement with Owens, although Owens had given an indemnity bond to the city. Error to superior court of Grand Rapids; Richard L. Newnham, Judge.

Action by the city of Grand Rapids against Joseph Van Rossum and others. Verdict for plaintiff. Defendants bring error. Affirmed.

*

* *

The defendant Joseph Van Rossum is a licensed plumber in the plaintiff city. He gave a bond conditioned to hold the city harmless from all loss or damage that should "be occasioned in any way by accident or the want of care on the part of the said Joseph Van Rossum in the prosecution of any work he may do under and by virtue of his said appointment, or that may be occasioned by reason of any opening by him made or caused to be made in any street, lane," etc., "and shall promptly at the proper time replace and restore the street or pavement over such openings to as good state and condition as the same was previous to and at the time of opening the same." On the 1st day of August, 1898, he dug a trench across Ottawa street for the purpose of making a water connection. By reason of this excavation being left unprotected, one Elizabeth Monje fell into it, was injured, sued the city, and recovered damages. Monje v. City of Grand Rapids (Mich.) 81 N. W. 574. Plaintiff had completed the plumbing work, and had filled the ditch, except in the line of a sewer which was being dug lengthwise to Ottawa street by one Owens under a contract with the city. Owens had given a bond similar to that of defendant, to hold the city harmless. Owens' trench would cross the excavation made by the defendant, and he requested the defendant not to fill the ditch where he would cross. Defendant testified that he made an arrangement with Owens by which Owens assumed control of the trench, and promised to protect it;

*See note to Mayor, etc., of City of Waycross et al. v. Houk, ante, p. 421. +See note, 5 Mun. Corp. Cas. 374.

Jones v. City of Chanute

that before the accident happened Owens had reached the excavation made by the defendant; that Owens failed to protect the place, and that by reason of his failure Mrs. Monje was injured. The court directed a verdict for the plaintiff.

R. M. Ferguson (James J. Danhof, of counsel), for appellants.

Lant K. Salsbury, for appellee.

GRANT, J. (after stating the facts). Defendant made the excavation. Under his bond with the city it was his duty to protect it when open, and to cover it up when his work was completed. He did not do it, but turned it over to Mr. Owens, with an agreement upon his part that he would protect it. Defendant fully understood his legal duty. He might have sought the proper authorities of the city, and relieved himself from liability by agreement with it to turn the excavation over to Mr. Owens. He did not, however, even notify the city of his arrangement with Owens. He was primarily liable. The city is under no obligation to ascertain whether defendant or Mr. Owens was liable, or to run the risk of determining what the contract was between defendant and Owens, and of thus falling between two stools. Plaintiff knew that defendant made the excavation; that it had not been filled; that it was left unprotected, in consequence of which the city was subjected to damage. Its right to look exclusively to defendant, who was primarily liable, is undoubted. If defendant has any remedy, he must seek it against Owens. Judgment affirmed. The other justices concurred.

JONES et al. v. CITY OF CHANUTE et al.

(Supreme Court of Kansas, June 8, 1901.)

[65 Pac. Rep. 243.]

Open Sewer*-Private Individual Who Sustains No Special or Peculiar Injury Cannot Maintain Action to Abate a Public Nuisance.*—One complaining of the nuisance of a ditch or open sewer into which is drained refuse and filthy matter, giving off disagreeable odors and poisonous exhalations, but who sustains no damage from it peculiar or special to himself, but only such as is common in greater or less degree to the whole public, cannot maintain an action in his own name to abate the nuisance. It can be abated only by a prosecution instituted in behalf of the public by the proper officers.

Open Sewer-Public Nuisance-Meaning of the Words "The Public." By the words "the public," used with respect to the collective body in whose behalf a prosecution to abate a common nuisance must be brought, is meant all those who are affected by the nuisance in the same way, or who, having occasion to come in contact with it, may be affected in the same way, though differing in the extent or degree to which they may be injured.

(Syllabus by the Court.)

*See note to Mayor, etc., of City of Waycross et al. v. Houk, ante, p. 421; notes, 3 Mun. Corp. Cas. 455; 1 Mun. Corp. Cas. 162.